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<br /> 9. POLLUTANTS AND HAZARDOUS WASTES: It is understood and agreed that FNI has neither created nor
<br /> contributed to the creation or existence of any hazardous, radioactive, toxic, irritant, pollutant, or otherwise dangerous
<br /> substance or condition at the site, if any, and its compensation hereunder is in no way commensurate with the potential
<br /> risk of injury or loss that may be caused by exposures to such substances or conditions. The parties agree that in
<br /> perfonning the Services required by this AGREEMENT, FNI does not take possession or control of the subject site, but
<br /> acts as an invitee in performing the services, and is not therefo~ responsible for the existence of any pollutant present
<br /> on or migrating from the site. Further, FNI shall have no responsibility for any pollutant during clean~up, transportation,
<br /> storage or disposal activities.
<br /> 10. OPINION OF PROBABLE COSTS: FNI will furnish an opinion of probable project development cost based on
<br /> present day cost, but does not guarantee the accuracy of such estimates. Opinions of probable cost, financial evaluations,
<br /> feasibility studies, economic analyses of alternate solutions and utilitarian considerations of operations and maintenance
<br /> costs prepared by FNI hereunder will be made on the basis of FNI' s. experience and qualifications and represent FNI's
<br /> judgement as an experienced and qualified design professional. It is recognized,. however,. that FNI does not have control
<br /> over the cost of labor, material, equipment or services furnished by others or over market conditions or contractors'
<br /> methods of determining their prices.
<br /> II. CONSTRUCTION REPRESENTATION: If required by the AGREEMENT, FNI will furnish Construction
<br /> Representation according. to the defined. scope for these services. FNI will observe the progress and the quality of work
<br /> to determine in general if the work is proceeding in accordance with the Contract Documents. In performing these
<br /> services, FNI will endeavor to protect Owner against defects and deficiencies in the work of Contractors; FNI will report
<br /> any observed. deficiencies to Owner, however, it is understood that FNI does not guarantee the Contractor's. performance,
<br /> nor is FNI responsible for the supervision of the Contractor's operation and employees. FNI shall not be responsible for
<br /> the means, methods, techniques, sequences. or procedures of construction selected by the Contractor, or the safety
<br /> precautions and programs incident to the work of the Contractor. FNI shall not be responsible for the acts. or omissions
<br /> of any person (except his own employees or agent) at the Project site or otherwise performing any of the work of the
<br /> Project~ If Owner designates a person to serve in the capacity of Resident Project Representative who is not a FNI's
<br /> employee or FNI's agent, the. duties, responsibilities and limitations of authority of such Resident Project
<br /> Representative( s) will be set forth in writing and made a part of this AGREEMENT before the Construction Phase of
<br /> the Project begins.
<br /> 12. PAYMENT: Progress. payments. may be requested by FNI based on the amount of services completed. Payment for
<br /> the services of FNI shall be due and payable upon submission of a statement for services to OWNER. Statements for
<br /> services shall not be submitted more ftequentIy than monthly. Any applicable new taxes imposed upon services,
<br /> expenseS'. and charges by any governmental body after the execution of this AGREEMENT will be added to FNI's
<br /> compensation.
<br /> If OWNER fails to make any payment due FNI for services and expenses within thirty (30) days after receipt of FNI's
<br /> statement for services therefore, the amounts due FNI will be increased at the rate of one. percent (1%) per month from
<br /> said thirtieth (30th) day, and, in addition, FNI may, after giving seven (7) days' written notice to OWNER, suspend
<br /> services under this AGREEMENT until FNI has. been paid in full, all amounts. due for services, expenses and charges.
<br /> 13. ARBITRATION: No arbitration arising out of, or relating to, this AGREEMENT involving one party to this
<br /> AGREEMENT may include the other party to this AGREEMENT without their approval.
<br /> 14. SUCCESSORS AND ASSIGNMENTS: OWNER and FNI each are. hereby bound and the partners, successors,
<br /> executors, administrators and legal representatives of OWNER and FNI are hereby bound to the. other party to this
<br /> AGREEMENT and to the partners, successors, executors, administrators and legal representatives (and said assigns) of
<br /> such other party, in respect of all covenants, agreements and obligations of this AGREEMENT.
<br /> Neither OWNER nor FNI shall assign, sublet or transfer any rights under or interest in (including, but without limitation,
<br /> moneys that may become due or moneys. that are due) this AGREEMENT without the written consent of the other, except
<br /> to the extent that any assignment,. subletting or transfer is mandated by law or the effect of this. limitation may be
<br /> restricted by law. Unless. specifically stated to the contrary in any written consent to an assignment,. no assignment will
<br /> release or discharge the assignor ftom any duty or responsibility under this AGREEMENT. Nothing contained in this
<br /> paragraph shall prevent FNI ftom employing such. independent associates and consultants as FNI may deem appropriate
<br /> to assist in the performance of services hereunder.
<br /> 15. PURCHASE. ORDERS: If a PUrchase order is usedto authorize FNI's. Services, only the terms,. conditions/instructions
<br /> typed on the face of the Purchase Order shall apply to this AGREEMENT. Should there be any conflict between the
<br /> Purchase order and the terms of this AGREEMENT, then this AGREEMENT shall prevail and shall be determinative
<br /> of the conflict.
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